By Carlton Joseph

The recent leak of a draft Supreme Court decision gutting United States (US) abortion rights has mobilized the entire country.  If the leaked version becomes law, it would abolish the nationwide protections for reproductive rights that have been in place for nearly 50 years, and would open the door for states to completely outlaw abortions.  In fact, 26 states have laws or constitutional amendments already in place that would ban abortion if the law is enacted. 

Chief Justice Roberts acknowledged the authenticity of the document and said it was a betrayal, and added his voice to those of Republican lawmakers demanding a federal investigation into who leaked the draft document.  Justice Thomas who has long called for Roe v. Wade to be overturned, described the leak as an unthinkable breach of trust, that changes the institution fundamentally.  Interestingly, these Justices refuse to acknowledge that their partisanship has already fundamentally transformed the court, and Thomas’s decisions have been a breach of trust to his race.

Republican lawmakers called for an investigation into the leaker’s identity, insisting that: “This lawless action should be investigated and punished to the fullest extent possible, including criminal charges.”  The hypocrisy is overwhelming, these same lawmakers who refuse to denounce the January 6^th insurrection, want criminal charges for a leaked document.  In America, one can try to overthrow a government with impunity, but if you leak a Supreme court brief you could face criminal charges.  Hypocrisy at its zenith.

Democrat lawmakers, always in reaction mode, were in damage control mode, trying to convince their base that they were serious about the abortion issue.  Some demanding that Congress pass legislation that codifies Roe v. Wade, some wanting to increase the number of Justices on the court, others demanding to end the filibuster, knowing that even if they succeeded in ending the filibuster, they will still not have the votes. Others, rightly calling for primary challenges to Senators Sinema and Manchin. Political posturing at its best.

Posturing, because President Biden, as a senator in 1987, condemned former President Franklin Delano Roosevelt’s attempt to add new members to the Supreme Court, and during the 2020 elections he said he is “not a fan” of the idea.  Also, House Speaker Nancy Pelosi and other top Democrats are continuing to support Congressman Henry Cuellar, a conservative anti-abortion Democrat, despite his long-standing opposition to reproductive rights.  The all-inclusive democratic tent is so large that it has become impotent, the party controls the House, Senate and the Presidency and cannot accomplish anything for its base of supporters.

The people are tired of the political games, and have decided to take to the streets.  Tens of thousands participated in a massive abortion rights protests in over 400 cities and towns all over the country, kickstarting a “Summer of rage” program to protest the pending decision.   Organizers have noted that Biden has not had an open meeting with people who are having abortions or providing abortions, but has spent the last two weeks, since this leak, meeting with police officers to give them more money, and with gun manufacturers to keep the war in Ukraine going.

A new CNN poll shows that two-thirds of the country opposes overturning Roe v. Wade.  How is it possible, that a President who lost the popular vote by millions, can appoint three Justices, and these justices have the power to change laws that have been in place for 50 years?  Something is radically wrong with the system.  Worst, the other two branches of government are subjected to election cycles, the Presidency every four years, the House every two years and the Senate every six years.  However, changes in the Supreme Court are determined either by death or severe illness. 

What kind of asinine system, forces people to retire by age sixty-five, have lawmakers and Presidents’ face elections, but have various Presidents appoint nine people to a lifetime position, with no age limit?  This anachronism should either be transformed or abandoned.  Judges, who can openly lie to Senators during a public confirmation hearing, about their position on Roe V Wade, and a few months later do the opposite of what they said, is antithetical to a functioning judiciary.  These Justices are pathological liars, who are contemptuous of the system and its processes, and should not be allowed to sit on the court. 

Traditionally, the Supreme Court has been the exemplar of nonpartisan federal government.  The branch is composed of officials who are appointed, and have studied and sworn to faithfully abide by the Constitution.  As Federal employees, they are not representatives of political parties, and must not allow their biases and ideology to determine their judicial opinion.  This Supreme Court has destroyed any illusion of nonpartisanship, or notion that serious analysis of issues is being undertaken, these Justices are political operatives and consistently rule in favor of large corporate and special interests that fund the Republican party.

This Supreme Court has become America’s Taliban, an ultraconservative political and religious faction, and their relationship with the Republican party is heralding a theocracy combined with Presidential democracy. 

The Supreme Court should be abolished, nine appointed people, with lifetime jobs, must not be allowed to make decisions that will organically change the lives of 338 million Americans.  It is irresponsible to entrust nine ordinary people, who have been appointed by four Presidents over 17 years, to have that much power.

Unfortunately, these Justices will become even more powerful because Congress is dysfunctional.  Dysfunction will result in an increase in legal challenges, and since the Supreme Court has the final say on all matters that come to it, and there is no appeal from its decisions, these nine appointed Justices will, in effect, be running the country.   Ironically, the compromise that was made to curb Presidential veto power has given the Justices veto power.

Americans should understand that the Supreme Court is the result of a compromise between the framers of the Constitution because they could not agree on how strong the central government should be, but wanted the judiciary to have a role in checking the President’s power to veto or revise laws.  Obviously, they did not think it was essential, because they set no qualifications for service as a justice, leaving the President to nominate anyone and the Senate to reject or confirm.   Like the Missouri compromise, this compromise needs to be abandoned.

The court’s legitimacy depends upon the public perceiving that its decisions are based on the rule of law rather than partisan politics.  Soon, the court will consider two challenges to race-based “affirmative action,” If it decides to eliminate or curtail the use of race in college admissions, people will be in the streets.  Should Republicans win control of the Senate in the upcoming elections they will pass a national ban on abortion rights, and people will be in the streets.

In many states voting rights laws are being challenged, therefore, one should anticipate that the extreme right would challenge the abolition of slavery, and this Supreme Court would uphold the challenge, with Clarence Thomas voting with the majority.  The state of the Union is in jeopardy, it is time to radically transform or abandon the Supreme Court. 

(Trinidad-born Carlton Joseph who lives in Washington DC, is a close observer of political developments in the United States.)